Holding

Section 64 of the NDPS Act may be exercised at any time during the trial before judgment and prevails over Section 307 CrPC, so the High Court’s order granting immunity is valid.

Summary

The appellant, Jasbir Singh, was tried for offences under the NDPS Act alongside co‑accused Vipin Kumar Jaggi (Respondent No. I). Jaggi applied for a pardon under Section 307 CrPC, which the Sessions Judge rejected, after which the Narcotics Control Bureau granted him immunity under Section 64 of the NDPS Act. The Sessions Judge later refused to allow Jaggi to be examined as a witness, holding that Section 64 could not be exercised after trial commenced. The Delhi High Court held that Section 64 could be exercised at any stage before judgment and set aside the Sessions Judge’s order. On appeal, the Supreme Court affirmed that the power under Section 64 is not limited to the pre‑trial stage, can be exercised during trial, and prevails over the Court’s power under Section 307, thereby upholding the High Court’s decision and dismissing the appeal.

Issues considered

The scope of the power conferred by Section 64 of the NDPS Act – whether it can be exercised after the commencement of trial and after a Section 307 pardon application is rejected.
Whether there is a conflict between the executive’s power under Section 64 and the Court’s power under Section 307 CrPC, and which provision prevails.
The proper interpretation of the terms ‘immunity from prosecution’ and ‘prosecution’ in Section 64.
Whether the Sessions Judge could set aside the immunity granted under Section 64 by refusing to call the co‑accused as a witness.
The maintainability of the appeal given that the appellant was not a party before the High Court.

Legislation cited

Code of Criminal Procedure, 1973s. 306, s. 307, s. 311, s. 321
Narcotic Drugs and Psychotropic Substances Act, 1985s. 64

Subjects

NDPS ActSection 64 immunityCriminal Procedure CodeSection 307 pardonStatutory interpretationSpecial vs general legislationCo‑accused approverExecutive powerTrial procedure

Judgment

A JASBIR SINGH
v.
VIPIN KUMAR JAGGI AND ORS.

AUGUST 16, 2001

B [G.B. PATTANAIK AND RUMA PAL, JJ.]

Narcotic Drugs and Psychotropic Substances Act, 1985-Section 64-
lmmunity from prosecution-Power-Exercise of-Whether permissible after
rejection of application u/s. 307 Cr.P.C.-Held, permissible, the power can
C be exercised at any time during the course of trial but before the judgment
is delivered-Criminal Procedure Code, 1973-Sections 307 and 311.

Criminal Procedure Code, 1973-Sections 321 and 307-Distinction
between.

D Interpretation of Statutes-'Meaning of a Phrase-Arriving at of-Words
take colour from the context in which they are used-Provision should not
be broken down towards, and after defining each word individually weld
them together to arrive at the meaning.

Statutes-Conflict between-Overriding effect of-Held, the special Act
E would override the general Act-And the later enactment would override the
earlier enactment.

Words and Phrases

'Immunity from prosecution' and 'Prosecution'-Meaning of-In the
F context of Section 64 of Narcotic Drugs and Psychotropic Substances Act,
1985.

Appellant-accused and respondent No.I-co-accused were prosecuted
for ofTences under Narcotic Drugs and Psychotrophic Substances Act, 1985,
G on the complaint of Narcotic Control Bureau (NCB). Respondent No. I made
application under s.64 of the Act, before NCB for immunity from prosecution
and subsequently, also made applications under Section 307 Cr.P.C. for
grant of pardon, before Sessions Judge, which was supported by public
prosecutor. After dismisslll of application under section 307, NCB allowed
his applications under s.64 on the condition that evidence would be tendered
H 598
JASB!R SINGH v. V!PIN KUMAR JAGGI 599
by him in the case. Thereafter, application by prosecution under S.311 A
· Cr.P.C. for leave to exempt respondent No. I as a witness, was dismissed on
the ground that after initiation of trial, powers under s.64 of the Act could
not be exercised and the same would amount to vesting the power of judicial
authority in the Government.

Writ Petition filed by respondent No. 1, where appellant was not made
B
party, was allowed by the High Court holding that the Sessions Judge was
wrong limiting the power under Section 64 to a stage before the prosecution
commenced; and that immediately after immunity is granted under s.64,
respondent No. I stands discharged and could be examined as a witness.
c
Appellant's application under Article 215 of the Constitution, and
Section 482 Cr.P.C. for recalling its order were rejected by the High Court.

In appeal to this Court, appellant contended that power under s.64 of
the Act could be exercised only before commencement of trial; and that once
application u/s. 307 Cr.P.C. was rejected, it was not open to the Government D
to grant immunity u/s. 64 of the Act on the same facts.

Respondent raised preliminary objection as to maintainability of the
appeal in view of the fact that he was not a party before the High Court.

Dismissing the appeal, the Court E

HELD: 1.1. There is nothing in Section 64 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 to circumscribe the power of the Central
or State Government under Section 64, to a point of time prior to the
commencement of the trial. Therefore if in any trial of offences under the F
Act, it is felt by the Government (in this case NCB) that it is necessary to
have the evidence of the co-accused, it can, subject to the conditions specified
in Section 64(1 ), withdraw the case against such co-accused by granting him
immunity. (612-G; 613-Al

SA. Venkatraman v. Union of India, (1954) SC 376 and Thomas Dana G
v. State of Punjab, AIR (1959) SC 375, distinguished.

1.2. The order under Section 64 of the Act, was fully operative when
the applications under Section 311 Cr.P.C. to examine - respondent No.I
were filed by the prosecution before the Sessions Judge. The refusal of the
said applications by the Sessions Judge in fact would result in the withdrawal H
600 SUPREME COURT REPORTS (2001] SUPP. I S.C.R.

A of the immunity granted to respondent No. l under section 64 since the
immunity had been granted to respondent No. I subject to the condition that
evidence would be tendered by him in the pending cases. Sessions Judge
could not sit in appeal over the decision of the NCB more so when no one
had challenged the order under Section 64 before him. (613-GJ

B 1.3. The object of Section 64 of the Act being the same as Section 307,
it should logically follow that the power to grant immunity from prosecution
may be exercised at an)' time during the course of the trial. The phrase
'Immunity from prosecution' does not mean anything more than the power
to withdraw from prose,cution. That can be exercised at any time in the
C course of the trial, but b1~fore judgment is delivered. [612-A, Bl

1.4. There is no conflict between the powers exercised by the Court
under Section 307, Cr.P.C. and by the Government under Section 64. All that
Section 64 does is to bring: expressly to the fore the role which the Executive
already has to play under Section 307 Cr.P.C. The only difference is in the
D authority which orders the pardon or the grant of immunity. Assuming there
is a conflict between the powers of the Court under s.307 Cr.P.C. and the
power of the Central Gov1ernment under Section 64 of the Act, then Section
64 would prevail, both on the ground that NDPS Act being a special Act
overrides the Cr.P.C. which is a general Act and also because the later
E enactment must prevail over the earlier one. 1613-H; 614-A, Cf

Kanta Prashad v. Delhi Administration, 119581 SCR 1219; State of
UP. v. Kai/ash Nath Agarwal and Ors., 119731 3 SCR 728; Sarwan Singh
and Anr. v. Kasturi Lal, 11'177J 2, SCR 421; Maharashtra Tubes Ltd. v. State
Industrial and Investment Corporation of Maharashtra Ltd. and Anr., 119931
F 2, SCC 144; Allahabad Bank v. Canara Bank and Anr., 120001 4 SCC 406
and Solidatre India Ltd. v. Fairgrowth Financial Services Ltd. and Ors.,
120011 3 sec 71, referred to.

1.5. In view of the object and reasons and Sections 4(1) and (3) when
G cases are started on the complaint of the NCB, it is not a mere complainant
but is the Executive and it must act in discharge of a mandate statutorily cast
upon it to effectively ched among other activities the illegal dissemination
and smuggling of drugs. llilO-DI

Durand Didier v. ChhfSecretary, Union Terriotory of Goa, AIR (1989)
H SC 1966, referred to.
JASBIR SINGH v. VIPIN KUMAR JAGGI 601

Sardar Iqbal Singh v. State (Delhi Admn.). AIR (1977) SC 2437; A
Sanjay Gandhi v. Union of India and Ors., AIR (1978) SC 514; State Delhi
Admn. v. Jagiit Singh, AIR (1989) SC 598 and Suresh Chandra Bahri and
Ors. v. State of Bihar, AIR (1994) SC 2420, referred to.

2.1. The role of the prosecutor under Section 307 is distinct and
different from the part he is called on to play under the provisions of Section B
321 Cr.P.C. Under Section 321 the Public Prosecutor or the Assistant
Public Prosecutor in charge of a case, may with the consent of the Court,
at any time before the Judgment is pronounced, withdraw from the prosecution
of any person either generally or in respect of any one or more of the
offences for which he is tried. The most noticeable difference between Section C
321 and Section 307 Cr.P.C. is that unlike the grant of pardon under section
307 Cr.P.C. withdrawal from prosecution u/s 321 Cr.P.C. is unconditional
although it does provide for the express permission of the Central Government
in specified cases. Section 321 Cr.P.C. also does not spell out the
circumstances under which the power may be exercised, either by the
pros-ecution or by the Court in granting consent. In contrast the power of D
tendering pardon under Section 307 is restricted to one consideration alone
namely the obtaining of evidence from the person to whom pardon is granted
relating to the offences being tried. 1608-F, G; 609-A, B, D, E]

Subhash Chander v. The State (Chandigarh Admn.), AIR (1980) SC
423 and M.N. Sankaranarayanan Nair v. P. V Balakrishnan, AIR (1972) SC E
496, referred to.

2.2. The grant of pardon by Court is rooted in the premise that most
criminals try to avoid detection. Crimes like smuggling, by definition are
carried on secretively. The persons involved in such criminal activity would F
obviously try to conceal and hide any evidence of their activities in as many
ways as human ingenuity can devise. That is why the prosecution is often
compelled to rely on the evidence of an accomplice to bring the most serious
offenders to book. 1606-G, H; 607-AI

laxmipat Choraria v. State of Maharashtra, AIR (1968) SC 938 and G
Suresh Chandra Bahari v. State of Bihar, ( 19951 Supp. 1 SCC 80, referred
to.

3. The first order of the Sessions Judge refusing pardon to the
respondent No. 1 even though it was actively canvassed for by the Special
Public Prosecutor, was wrong. It was not for the Sessions Judge to have H
602 SUPREME COURT REPORTS [2001) SUPP. I S.C.R.

A considered the possible weight of the approver's evidence, even before it was
given. In any case, the evidence of an approver does not differ from the
evidence of any other witness except that his evidence is looked upon with
great suspicion. But the suspicion may be removed and if the evidence of an
approver is found to be trustworthy and acceptable then that evidence might
B well be decisive in securing a conviction. Although the power to actually
grant the pardon is vested in the Court, the Court can have no interest
whatsoever in the outcome nor can it decide for the prosecution whether
particular evidence is required to ensure the conviction of the accused. That
is the prosecution's job. (680-E, F; 607-GI

C Lt. Commander Pascal Fernandes v. State of Maharashtra, AIR (1968)
SC 594 and Suresh Chandra Bahri v. State of Bihar, AIR (1994) SC 242,
referred to.

D
4. No principle of interpretation requires a statutory provision to be
broken down to the words which constitute it and then after defining each
word individually weld them together to arrive at the meaning of a phrase.
Words take their colour from the context in which they are used. Given the
-
nature and object of the power, the word 'prosecution' must in the context
of Section 64 of the Act mean the entire proceeding till the judgment of the
Court is delivered. The words 'prosecution' and 'punishment' have been held
to have no fixed connotation and they are susceptible of both a wider and a
E narrower meaning. (612-B, C, DI

S.A. Venkataraman v. Union of India, (1954) SC 376, referred to.

Black Law Dictionary, Sixth Edition, refered to.

F 5. The preliminary objection raised by Respondent No. I does not
survive in view of this Court permitting the appellant to file the special leave
petition. I606-C, DI

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos.
G 826-827 of2001.

From the Judgment and Order dated 18.8.2000 and 31.1.2000 of the Delhi
High Court in CrL R. No. 3226/2000 and CrL M. No. 420of1996.

V.A. Mohta, Harjinder Singh, Ms. Vandana Sharma, Navdeep Brar for
H the Appellant
JASBIR SINGH v. VJPJN KUMAR JAGGI [RUMA PAL, J.) 603
Soli J. Sorabjee, Attornery General, Anoop G.Chaudhary, Ms. Sushma A
Suri, Ms. Sunita Sharma and Manish Singhvi for the Respondent.

Sudhir Chandra, Smt. Nitya Ramakrishnan, M.A. Chinnasamy and
Achintya Dvivedi for the Respondent No. I.

The Judgment of the Court was delivered by B
RUMA PAL, J. Leave granted.

The appellant is under trial for offences alleged to have been committed
under Sections 21, 23 and 29 of the Narcoitc Drugs and Psychotropic
Substances Act, 1985 (referred to hereafter as the 'Act'). The respondent No. C
I. was a co-accused. The appellant has challenged an order dated 31.1.2000
by which the High Court upheld an order of the Central Government granting
the respondent No. I immunity from prosecution under Section 64 of the Act.
In this appeal, we are concerned with the scope of the power under Section
64 of the Act and whether it can be exercised by the Central Government in
favour of a person after the Sessions Judge has rejected an application by D
such person for pardon under Section 307 of the Code of Criminal Procedure,
1973.

Proceedings under the Act were intiated against inter alia the appellant
and the respondent No. I on two separate complaints of the Narcotics Control E
Bureau (briefly referred to as 'NCB') being SC No. 136/89 and SC No. 233/
88. The appellanat is the principal accused in both cases. The allegation is
that he was the kingpin of an international net-work of drug smugglers.
According to the prosecution, the evidence against the appellant included
'chits' recording some details regarding the smuggling of drugs and contacts
in the United States of America and a tape recording of a conversation F
between the appellant and the respondent No. I relating to the smuggling of
drugs to the USA.

On 23rd November, 1989 the respondent No. I applied to the NCB to
be made an approver as he was willing to co-operate with the NCB in securing
a conviction of the appellant. While this application was pending, the G
respondent No. I filed two identical applications on 19.4.1990 in the two cases
before the Additional Sessions Judge New Delhi, for grant of pardon under
Section 307 Cr.P.C. in return for making a full disclosure of the transactions
relating to the drug smuggling in both cases. The applications were supported
by the Special Public Prosecutor and arguments were advanced by the Special H
604 SUPREME COURT REPORTS [2001) SUPP. I S.C.R.

A Public Prosecutor in suppm·t of the applications urging that in keeping with
ihe provisions of Section 307 Cr.P.C.. the grant of pardon to the respondent
Ne. I would enable the pro~ecution to obtain the evidence of the respondent
No. I which would strengthen the case of the prosecution against the appellant.
The appellant opposed the applications before the Sessions Judge.

B The Sessions Judge by his order dated 4th October, 1990 rejected the
applications of the respondent No. I after assessing the evidence sought to
be adduced against the appellant in some detail. It was held that the evidence
of the respondent No. I was not necessary to bring home the guilt of the
appellant. It was also held that any evidence given by the respondent No.
C I would be weak evidence not only because the respondent No. I would be
an approver but also becaus·~ the respondent No. I was a convicted offender
and had been released on parole because of mental sickness. The Sessions
Judge concluded that no purpose would be served at all in granting pardon
to the respondent No. I.

D After this, the application made by the respondent No. I praying for
immunity from prosecution from the offences with which he was charged was
considered by NCB. The transcript supplied by the respondent No. I of the
telephonic conversation with the appellant, the original tape-recorded version
of which was with the prosecution, was also considered. The respondent No.
I stated that he was willing to identify the appellant's voice in the tape-
E recorded conversation. The application was allowed by the NCB and immunity
was granted to the respondent No. I under Section 64 of the Act after
recording the reasons in writing on 18th August 1992. It was noted that the
appellant was a "big time drug trafficker and main organiser of the syndicate.
He operates very cleverly avoiding direct exposure. The available evidence
F against him is the 'Chits' recovered from his house. The other evidence is his
intercepted telephonic conversation with Shri Vipin Jaggi" (namely the
respondent No. I herein). The order took note of the rejection of the respondent
No. I's application for pardon by the Sessions Judge but went on to state
that the powers under Section 64 of the Act were independent of and did not
conflict with the powers conferred on the Court under Section 306 and 307
G Cr.P.C. The NCB was of the opin:on that the evidence which would be
rendered by the respondent No. I was "mainly the identification of the voice
and corroboration and exp! anation of recorded conversation" between the
respondent No. I and the appellant which was "crucial" for the prosecution
. of the appellant. It was also recorded in the order that the respondent No.
H I had been medically examined on 24.4.1992 by the Associate Professor,
JASBIR SINGH v. VIPIN KUMAR JAGGJ [RUMA PAL, J.] 605
Department of Psychiatry, All India Institute of Medical Sciences and found A
to be normal. The immunity which was granted to the Respondent No. I from
prosecution in the pending case was made subject to the withdrawal of such
immunity under Section 64(3), if the respondent No. I did not render the
evidence or wilfully concealed anything or gave false evidence.

On 24th February, I 993 the prosecution applied under Section 311 Cr. B
P.C. before the Sessions Judge for leave to examine the respondent No. I as
witness in the pending cases. This was opposed by the accused. The Sessions
Judge found that the application under Section 311 was a "misuse of process
of Court and was without any substance" essentially on the ground that once
prosecution had been launched against accused persons and they were C
undergoing trial, powers under Section 64 of the Act could not be exercised
for changing the status of an accused into that of a witness. It was held that
the grant of immunity under Section 64 to an accused who was facing trial
before the Court would amount to vesting the power of judicial authority in
the Government. According to the Sessions Judge, if the prosecution wished
to seek pardon for any accused from the court to strengthen its case against D
the other accused, the prosecution should have moved an appropriate
application before the Court either under Section 307 or under Section 321
Cr.P.C. neither of which had been done. The prosecution's applications under
Section 31 I Cr.P.C. were accordingly rejected by a composite order on 24th
November 1995.
E
The decision of the Sessions Judge was challenged by the Respondent
No. I under Article 226 of the Constitution before the High Court at Delhi.
The appellant was not made a party. He filed an application for being added
as a party. This was disallowed by the High Court on 21st September 1999.
The appellant has not challenged this order before us. F

.,.. The writ application was finally allowed by the High Court by the order
dated 31.1.2000. It was held by the High Court that the Sessions Judge was
wrong in limiting the power under Section 64 to a stage before the prosecution
was commenced. According to the High Court, neither the language of Section
64 of the Act nor of Sections 306 and 307 Cr.P.C. could be construed in a G
manner so as to hold that the power under Section 64 came to an end on the
taking of cognizance of the offence by the Trial Court. The High Court also
relied upon the decisions i.e. Sardar Iqbal Singh v. Stale (Delhi Admin.), AIR
(1977) SC2437,SanjayGandhiv. Uniono/lndiaandOrs, AIR(I978) SC 514,
Stale (Delhi Admn.) v. Jagjit Singh, AIR (1989) SC 598, Suresh Chandra H
606 SUPREME COURT REPORTS [2001] SUPP. I S.C.R.

A Bahri and Ors. v. State ofBihar, AIR (1994) SC 2420, to hold that immediately
upon the tendering of immunity to the respondent No. 1 under Section 64,
the respondent No. 1 would stand discharged whereupon he ceased to be an
accused and could be examined as a witness.

The appellant then filed an application under Article 215 of the
B Constitution read with Sectio·~ 482 Cr.P.C. for recalling the order dated 31.1.2000.
This was rejected by the High Court on 18.8.2000. In this appeal, the appellant
has challenged both the orders dated 31.1.2000 as well as 18.8.2000.

At the outset a preliminary objection raised by the respondent No. 1 is
C dealt with. According to the respondent No. 1 this appeal has been preferred
from an order passed in proceedings to which the appellant was not a party
and the appellant has not challenged the order by which his application for
intervention was rejected. It is contended that in the circumstances, the
appeal preferred before us is not maintainable. The objection, assuming that
it had some force, does not survive the order passed by this Court on 3rd
D November 2000 granting p1:rmission to the appellant to file the special petition.

The appellant's arguments on the merits were to some extent a reiteration
of the views expressed by the Sessions Judge, namely, that the power under
Section 64 of the Act could only be exercised before the commencement of
the trial. It has been contf:nded that this was clear from the language of the
E section itself. The second submission is that once the Court had rejected the
respondent No. l's application for pardon under Section 307, it was not open
to the Government to grant immunity to the respondent under Section 64 of
the Act on the same facts. According to the appellant by so doing, the
Government had encroached upon an area which was exclusively within the
F jurisdiction of the Court.
The submissions appear to us to proceed on a misunderstanding of the
role of the Court, the prosecutor and of the NCB in the granting of pardon
in trials for offences under the Act and a misreading of the provisions of
Section 64.
G
The grant of pardon by Court is rooted in the premise that most
criminals try to avoid detection. Crimes like smuggling, by definition are
carried on secretively. The persons involved in such criminal activity would
obviously try to conceal and hide any evidence of their activities in as many
ways as human ingenuity can devise. That is why the prosecution is often
H compelled to rely on the ·~vidence of an accomplice to bring the most serious
JASBIR SINGH v. VIPIN KUMAR .IAGGI [RUMA PAL, J.] 607
offenders to book. Besides " ...... to keep the sword hanging over the head of A
an accomplice and to examine him as a witness is to encourage perjury."'

It was in recognition of this need that the Code of Criminal Procedure,
1898 contained provisions like Sections 337 and 338 under which the District
Magistrate, a Presidency Magistrate, a Sub Divisional Magistrate or any
Magistrate of the first class at the stage of inquiry and the Trial Court, after B
commitment and before judgment, could grant pardon to a co-accused. The
pardon was made conditional upon the person making "a full and true
disclosure of the whole of the circumstances within his knowledge relative to
the offence, and to every other person concerned, whether as principal or
abettor, in the commission thereof". C
The issue has to be weighed in the balance so that at the cost of not
bringing one of the offenders to book, the others or at least the principal
offender can be convicted. " ...... The basis of the tender of pardon is not the
extent of the culpability of the person to whom pardon is granted, but the
principal is to prevent the escape of the offenders from punishment in heinous D
offences for lack of evidence." 2

The provisions of Sections 337 and 338 of the 1898 Cr.P.C. have been
substantially re-enacted as Sections 306 and 307 of the present Cr.P.C. For the
purposes of this case, however, we are concerned only with Section 307
which provides : E
"307. Power to direct tender ofpardon-At any time after commitment
of a case but before judgment is passed, the Court to which the
commitment is made may, with a view to obtaining at the trial the
evidence of any person supposed to have been directly or indirectly
concerned in, or privy to, any such offence, tender a pardon on the F
same condition to such person".

Although the power to actually grant the pardon is vested in the Court,

.
•I obviously the Court can have no interest whatsoever in the outcome nor can
it decide for the prosecution whether particular evidence is required or not G
to ensure the conviction of the accused. That is the prosecution's job. This
was the view expressed in Lt. Commander Pascal Fernandes v. State of
Maharashtra 1 where it was said :

I. laxmipat Choraria v. Stale ~f Maharashtra. AIR (1968) SC 938.
2. Sure sh Chandra Bahri v. State of Bihar. [ 1995] Supp. I SCC 80, I 06.
3. AIR, (1968) SC ~94 at. 599. H
608 SUPREME COURT REPORTS [2001] SUPP. I S.C.R.

·A " ....... Ordinarily it is for the prosecution to ask that a particular accused,
out of several, may be tendered pardon. But even where the accused
directly applies to the Special Judges he must first refer the request
to the prosecuting agency. It is not for the Special Judge to enter the
ring as a veritable director of prosecution. The power which the·
Special Judge exercise; is not on his own behalf but on behalf of the
B prosecuting agency, and must, therefore, be exercised only when the
prosecution joins in tt.e request. The State may not desire that any
accused be tendered 'Jardon because it does not need approver's
testimony. It may also not like the tender of pardon to the particular
accused because he may be the brain behind the crime or the worst
c offender. The proper course for the Special Judge is to ask for a
statement from the prosecution on the request of the prisoner. If the
prosecution thinks that the tender of pardon will be in the interests
of a successful proseciJtion of the other offenders whose conviction
is not easy without the approver's testimony, it will indubitably agree
to the tendering of pardon. The Special Judge (or the Magistrate)
D must not take on himself the task of determining the propriety of
tendering pardon in the circumstances of the case."
(emphasis supplied)

Judged by this ·standard, the first order of the Sessions Judge refusing
E pardon to the respondent No. I even though it was actively convassed for
by the Special Public Prosecutor, was wrong. It was not for the Sessions •
Judge to have considered the: possible weight of the approvers evidence,
even before it was given. In any case, the evidence of an approver does not
differ from the evidence of any other witness except that his evidence is
looked upon with great suspicion. But the suspicion may be removed and if
F the evidence of an approver i:; found to be trustworthy and acceptable then
that evidence might well be decisive in securing a conviction'. The Sessions
Judge could not and indeed should not have assessed the probable value of
the possible evidence of the respondent No. l in anticipation and wholly in
the abstract.

F The role of the proseculor under Section 307 is distinct and different
from the part he is called on to play under the provisions of Section 32 l
Cr.P.C. Under Section 321, the Public Prosecutor or the Assistant Public
Prosecutor in charge of a case may, with the consent of the Court, at any time
before the judgment is pronounced, withdraw from the prosecution of any
G 4. See S11resh Chandra Bahri v. Slale of Bihar (supra).
JASBIR SINGH v. VIPIN KUMAR JAGGI [RUMA PAL, J.] 609
person either generally or in respect of any one or more of the offences for A
. which he is tried. The most noticeable difference between this Section and
Section 307 of the Act is that unlike the grant of pardon under Section 307,
withdrawal from prosecution under Section 321 Cr. P.C. is unconditional
although it does provide for the express permission of the Central Government
in specified cases. Section 321 also does not spell out the circumstances
under which the power may be exercised, either by the prosecution or by the B
Court in granting consent. However, it has been judicially recognised that
"implicit in the grant of the power is that it should be in the interest of.
administration of justice which may be either that it will not be able to produce
sufficient evidence to sustain the charge or that subsequent information
before prosecuting agency would falsify the prosecution evidence or any C
other similar circumstances"' or it may be that "broader considerations of
public peaces, larger considerations of public justice and even deeper
considerations of promotion of long-lasting security in a locality; or order in
a disorderly situation of harmony in a faction milieu, or halting a false and
vexatious prosecution in a Court, may persuade the Executive, probono publico,
to sacrifice a pending case for a wider benefit".' D
In contrast the power of tendering pardon under Section 307 is restricted
to one consideration alone namely the obtaining of evidence from the person
to whom pardon is granted relating to the offences being tried. But it needs
to be noted at this stage that the power under Section 321 not only emphasises
E
the role of lhe Executive in the trial of offences but also that the Executive
can exercise the power at any time during the trial but before the judgment
is delivered. This will be relevant in construing the language of Section 64
of the Act.

The Act consolidated and amended earlier laws relating to narcotic F
drugs, namely, the Opium Act, 1857, the Opium Act, 1878 and the Dangerous
Drugs Act, 1930. In the Act's Statement of Objects and Reasons, it was noted
that the earlier Acts were not sufficiently deterrent to deal with the challenge
of well organised gangs of smugglers. It was necessary to make special
provisions for exercising effective control not only of neurotic drugs but also
of psychotropic substances particularly when "the country has for the last G
few years been increasingly facing the problem of transit traffic of drugs
coming mainly from some of our neighbouring countries and destined mainly
to Western countries."
5. Subhash Chander v. The Stale (Chandigarh Admn.).AIR ( 1980) SC 423.
6. /lf.N. Sankaranarayanan Nair v. P.I'. Balakrishnan. AIR (1972) SC 496. H
610 SUPREME COURT REPORTS (2001] SUPP. I S.C.R.

A The concern which motivated the enactment of the Act was echoed by
this Court in Durand Didier v. Chief Secretary, Union Territory of Goa1
when it said :

"With deep conci:rn, we may point out that the organised activities
of the underworld and the clandestine smuggling of narcotic drug.
B and psychotropic substances ........ has assumed serious and alarming
proportions in th1: recent years."

Under Section 4(1) of the Act, the Central Government is obliged to take
all such measures as are deemed necessary for the purpose of preventing and
combating the abuse of narcotic drugs and psychotropic substances and the
C illicit traffic therein. By Notification S.O. No. 96(E) dated 17th March 1985, the
Central Government constituted the Narcotics Control Bureau (NCB) in exercise
of its powers under Section 4(3) of the Act to discharge the powers and
functions of the Central Government under the Act subject to the
superintendence and control of the Central Government.
D It is, in the circumstances, clear that when cases are started on the
complaint of the NCB, it is not a mere complainant but is the Executive and
it must act in discharge of a mandate statutorily cast upon it to effectively
check among other activities, the illegal dissemination and smuggling of
drugs.
E
As early as in 1968 this Court had expressed the hope that :

"Perhaps it will be possible to enlarge Section 337 to take in certain
special laws dealing with customs, foreign exchange etc., where
accomplice testimony will always be useful and witnesses will come
F forward because of the conditional pardon offered to them."'

The hope has been fulfilled by enacting provisions like Section 64 in
the Act, Section 291 in the Income Tax Act, 1961 and Section 60 in the Foreign
Exchange Regulation Act, 1973. Each of these sections are substantially
identical.
G
Under Section 64(1) of the Act, the Central Government or the State
Government may tender immunity from prosecution for any offence under the
Act or under the Penal Code or under any Central or State Act with a view

7. AIR ( 1989) SC 1966.
H 8. laxmipal Ciloraria v. State of Maharashtra (supra) al p. 94$.
JASBIR SINGH v. VIPIN KUMAR JAGGI [RUMA PAL, J.) 611

to obtaining the evidence of any person appearing to have been directly or A
indirectly concerned in or privy to the contravention of any of the provisions
of the Act. The limitations on the exercise of the power are two fold; first the
Central Government or the State Government, as the case may be, must form
an opinion that it is necessary or expedient to grant immunity to such a
person. The reasons for such opinion are required to be recorded in writing.
The second limita~on on the exercise of the power under Section 64(1) is that B
it can be granted only conditionally - the condition being that the person
granted the immunity must make a full and true disclosure of the whole
circumstances relating to the contravention. The immunity is limited only to
the offence in respect of which a tender of evidence is made [Section 64(2)].
If the condition subject to which the immunity is granted is not fulfilled by C
the person to whom the immunity has been tendered, after recording a finding
to that effect by the Central Government or the State Government, the immunity
'shall be taken to have been withdrawn and such person may be tried for the
offence in respect of which the tender of immunity was made or for any other
offence of which he appears to have been guilty in connection with the same
matter.• The underlying rationale of Section 64 is that the Government/NCB D
which is vitally interested in getting hold of the culprits, must be allowed to
assess the strength of the evidence available to it and if necessary, bolster
its case with evidence of an accomplice. Therefore, the Section serves the
same purpose as the grant of pardon to approvers under Section 307 Cr.P.C.
E
9. Section 64. Power to tender immunity from prosecution-( I) The Central
Government or the State Government may, if it is of opinion (the reasons for such
opinion being recorded in writing) that with a view to obtaining the evidence of
any person appearing to have been directly or indirectly concerned in or privy to
the contravention of any of the provisions of this act or for any rule or order
made thereunder it is necessary or expedient so to do, tender to such person
immunity from prosecution fer any offenc.e under this Act or under the Indian F
Penal Code (45 of 1860) or under any other Central Act or State Act, as the case
may be, for the time being in force, on condition of his making a full and true
disclosure of the whole circumstances relating to such contravention. (2) A tender
of immunity made to, and accepted by the person concerned, shall, to the extent
to which the immunity extends, render him immune from prosecution for any
offence in respect of which the tender was made. (3) If it appears to the Central G
Government or, as the case may be, the State Government, that any person to
whom immunity has been tendered under this section has not complied with the
conditions on which the tender was 1nade or is wilfully concealing anything or is
giving false evidence, the Central Government, or as the case may be, the State
Government. may record a finding to that effect and thereupon the immunity shall
be deemed to have been withdrawn and such person may be tried for the offence
in respect of which the tender of immunity was made or for any other offence
of which he appears to have been guilty in connection with the san1c matter. H
612 SUPREME COURT REPORTS [2001] SUPP. I S.C.R.

A The object of Section 64 being the same as Section 307, it should
logically follow that it may be exercised at any time during the course of the
trial. It is true that the words 'immunitl from prosecution' have been used,
but the phrase does not mean anything more than the power to withdraw from
prosecution. That, as has been noted earlier, can be exerdsed at any time in
B the course of the trial, but before judgment is delivered.

However, according to the appellant the word 'prosecution' is limited
to the initiation of proceedings and, therefore, the grant of immunity cannot
be made subsequently. We are of the opinion that no principle of interpretation
requires a statutory provision to be broken down to the words which constitute
C it and then after defining each word individually weld them together to arrive
at the meaning of a phrase. Words take their colour from the context in which
they are used. Given the nature and object of the power, the word 'prosecution'
must in the context of Section 64 mean the entire proceeding till the judgment
of the Court is delivered. It may be pointed out that the words 'prosecution'
and 'punishment' have been held to have no fixed connotation and they are
D susceptible of both a wider and a narrower meaning.'°

Nevertheless even adopting the method of interpretation suggested by
the appellant, we arrive at the same result. The definition of the word 'immunity'
in the context of Section 64 is - 'Freedom or exemption/ram penalty, burden,
E or duty.'" Prosecution has been defined as - "A criminal action; a proceeding
instituted and carried on by due course of law, before a competent tribunal,
for the purpose of determining the guilt or innocence of a person charged
with crime" 12 •
(emphasis supplied)

F Cobbling these two definitions together, the phrase 'immunity from
.....
prosecution' in Section 64 would mean 'Freedom from punishment during a
proceeding instituted and carried on by law'.

There is thus nothing in Section 64 of the Act to circumscribe the power
of the Central or State Government under Section 64 to a point of time prior
G to the commencement of the trial. Therefore, if in any trial of offences under
the Act, it is felt by the Government, in this case the NCB, that it is necessary
to have the evidence of the co-accused, it can, subject to the conditions

10. See S.A. Venkataraman v. Union of India, (1954) SC 376.
11. Black Law Dictionary-Sixth Edition.
H 12. ibid.
JASB!R SINGH v. VIPIN KUMAR JAGG! [RUMA PAL, .I.] 613

specified in Section 64(1), withdraw the case against such co-accused by A
granting him immunity.

The decisions cited by the appellant viz., S.A. Venkatarama:1 v. Union
of India (supra) and Thomas Dana v. State of Punjab" are inapposite. In both
cases, the question was whether the appellant could avail of the protection
under Article 20(2) of the Constitution. In S.A. Venkararamn, the petitioner B
had challenged criminal proceedings initiated against him claiming that he had
already been prosecuted and punished for the same offences by the
proceedings under the Public Servants (Inquiries Act which had been resulted
in his dismissal from service. It was held by this Court that the inquiry under
the Public Servants (Inquiries) Act was not a prosecution for the purposes C
of Article 20 since the inquiry did not result in punishment under that Act.

Similarly, in Thomas Dana v. State of Punjab, (supra), the only issue
was whether a person proceeded against under Section 167(8) of Sea Customs
Act could be said to have been prosecuted and punished so that he could
claim protection from trial under the Criminal Procedure Code by virtue of D
Article 20(2) of the Constitution. The issue was answered in the negative.
Neither of the cases hold that prosecution only means the initiation of
.proceedings.

The order under Section 64 was fully operative when the applications
under Section 311 to examine the respondent No. I were filed by the E
prosecution before the Sessions Judge. The refusal of the applications under
Section 311 by the Sessions Judge in fact would result in the withdrawal of
the immunity granted to the respondent No. I under Section 64 since the
immunity had been granted to the respondent No. I subject to the condition
that evidence would be tendered by him in the pending cases. The Sessions
Judge could not sit in appeal over the decision of the NCB more so when no F
one had challenged the order under Section 64 before him.

The power conferred on the NCB is not an arbitrary one. Reasons are
required to be recorded in writing. Needless to say, the reasons would have
to be appropriate and germane to the object sought to be achieved by the
exercise of such power. We have scrutinised the order dated 18th August G
2000 and are satisfied that the reasons recorded for granting the immunity to
the respondent No. I are neither extraneous nor relevant.

There is no conflict between the powers exercised by the Court under

I 3. AIR (1959) SC 375. H
614 SUPREME COURT REPORTS (2001) SUPP. I S.C.R.

A Section 307 and by the Government under Section 64. All that Section 64 does
is to bring expressly to the fore the role which the Executive already has to
play under Section 307. The only difference is in the authority which orders
the pardon or the grant of immunity. Even under the Cr.P.C., 1898 it was held
that the provisions of Sections 337 and 338 of the Code contemplated
B concurrent jurisdiction in the Magistrate and the District Magistrate to tender
a pardon. The powers were independent so that when the Magistrate rejected
the grant of pardon under Section 337 it did not take away the power or
jurisdiction of the District Magistrate to entertain a further application for
grant of pardon. 14

C Assuming there is a conflict between the powers of the Court under
Section 307 Cr.P.C. and the power of the Central Government under Section
64 of the Act, then it must be held that Section 64 would prevail both on the
ground that the Act being a special Act overrides the Cr.P.C. which is a
general Act and also because the later enactment must prevail over the earlier
one."
D
We are told that after the decision of the High Court, the respondent
No. I has in fact tendered the evidence promised by him. To refuse him the
immunity now would not only be illegal but particularly unjust.

For the reasons aforementioned, we uphold the decision of the High
E Court and dismiss these appeals.

K.K.T. Appeals dismissed.

14. See Kanta Prashad v. Delhi Administration. [1958) SCR 1219 and State of U.P.
v. Kai/ash Nath Agarwal and Ors.. [1973) 3 SCR 728.

15. See (I) Sarwan Singh and Anr. v. Kasturi la/, [1977] 2 SCR 421; (2) Maharashtra
Tubes ltd. v. State Industrial and Investment Corporation of Maharashtra lid. and
Anr.. [1993) 2 SCC 144; (3) Allahabad Bank v. Canara Bank and Anr., (2000)
4 SCC 406 and (4) So/idaire India ltd. v. Fairgrowth Financial Services ltd. and
Ors.. [2001 J 3 sec 71.